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1
DALAM MAHKAMAH RAYUAN DI MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.W- 02(A)-789-04/2016
ANTARA
MOHD ZAMRI BIN ISMAIL …PERAYU
DAN
KOPERASI PEKEBUN KECIL GETAH NASIONAL BERHAD …RESPONDEN
[DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR PERMOHONAN BAGI SEMAKAN KEHAKIMAN No. 25-200-07/2015
Di dalam perkara Mahkamah Perusahaan kes No. 11/4-893/11 (Awad No. 383 Tahun 2015 bertarikh 7 haribulan April 2015)
Dan
Di dalam perkara suatu Permohonan di bawah Aturan 53 Kaedah-Kaedah MahkamahTinggi Untuk Semakan Kehakiman
ANTARA
KOPERASI PEKEBUN KECIL GETAH NASIONAL BERHAD …PEMOHON DAN MOHD ZAMRI BIN ISMAIL …RESPONDEN
2
CORAM:
HAMID SULTAN ABU BACKER, JCA PRASAD SANDOSHAM ABRAHAM, JCA
ASMABI BINTI MOHAMAD, JCA
(Asmabi Binti Mohamad JCA, delivering Judgment of the Court)
JUDGMENT OF THE COURT INTRODUCTION
[1] This is an appeal from the Kuala Lumpur High Court (Special
Powers) against the decision of the learned Judge of the said High Court
dated 28th March 2016 which allowed the Judicial Review Application
(“JR Application”) filed by the Applicant, Koperasi Pekebun Kecil Getah
Nasional Berhad for certiorari to be issued to quash the award of the
Industrial Court vide Award No.383 of 2015 dated 7th April 2015.
[2] We heard this appeal on 1st November 2016. After having read the
written submissions as well as hearing the oral arguments on the issues
raised, we allowed the appeal with cost of RM5,000.00 to the
Respondent.
[3] Our reason for doing so now follow.
[4] For ease of reference the parties will be referred to as there were
described in the High Court.
3
BRIEF BACKGROUND FACTS
[5] Briefly the facts of the case are as follows:
[6] The Respondent commenced his employment with the Applicant on
1st November 1990 as a Marketing Executive. He continued to work for
the Applicant for almost twenty years. His last post was General Manager
of the General Business Division and his last drawn salary was
RM6,699.38.
[7] On 23rd October 2009, the Respondent was issued a show cause
letter with five charges having been framed against him. These five
charges are as follows:
“(a) Bahawa kamu selaku Pengurus Besar Bahagian Perniagaan Am adalah tidak
cekap di mana kamu gagal melaksanakan tugas, lalai, melambat-lambatkan dan
berlengah-lengah dalam menjalankan tugas yang diamanahkan kepada kamu.
(b) Bahawa kamu telah didapati cuai, lalai dan berlengah-lengah dalam
menjalankan tugas kamu yang telah menyebabkan Syarikat menanggung
kerugian yang amat tinggi apabila dikenakan penalti atau denda kualiti baja
Estet Pekebun Kecil Sdn Bhd (ESPEK) kerana baja yang dibekalkan tidak
mengikut spesifikasi bagi bekalan baja untuk tahun 2006.
(c) Bahawa kamu telah dianggap telah melakukan kesalahan selaku Pengurus
Besar Bahagian kerana menyembunyikan dengan niat dari pengetahuan pihak
Pengurusan Syarikat dan tidak mengambil sebarang tindakan segera berhubung
dengan denda kualiti baja yang dikenakan oleh pihak ESPEK bertarikh 28 Mac
2007 walaupun surat itu telah dihantar dan diakui penerimaannya oleh
4
Bahagian Perniagaan Am pada 9 Januari 2008 yang lalu dan surat tersebut
dijumpai oleh pihak pengurusan Syarikat di dalam posesi dan kawalan kamu.
(d) Bahawa kamu adalah tidak cekap dimana kamu telah gagal mengambil tindakan
yang segera untuk berbincang serta membuat rayuan kepada pihak ESPEK
berkenaan dengan denda kualiti baja yang telah dikenakan tersebut sedangkan
kamu selaku kaki tangan kanan yang berpengalaman di dalam bidang ini
sepatutnya mengetahui akan langkah-langkah segera yang boleh dan perlu
diambil berhubung dengan denda kualiti baja yang telah dikenakan tersebut
untuk mengelak pihak Syarikat daripada menanggung kerugian yang lebih
besar.
(e) Bahawa kamu telah menggunakan kepentingan diri sendiri kamu melebihi
kepentingan Syarikat dan tidak amanah di dalam melaksanakan tugas kamu
dimana kamu telah berkelakuan dengan cara yang menimbulkan syak yang
munasabah dan menimbulkan kecurigaan apabila tidak mengambil tindakan
serta tidak pernah memaklumkan kepada pihak Syarikat berkaitan dengan surat
ASPEK yang bertarikh 28 Disember 2007 tersebut yang telah pun diterima oleh
bahagian pengurusan kamu dengan niat untuk menyembunyikan perkara
tersebut daripada pengetahuan pihak pengurusan Syarikat yang mana kelakuan
kamu tersebut telah menjejaskan imej dan kepercayaan terhadap perkhidmatan
kamu sebagai seorang Pengurus Besar dan ekoran dari perbuatan kamu tersebut
pihak Syarikat telah menanggung kerugian yang amat tinggi.”
[8] On 26th November 2009 the Respondent replied to the charges
proffered against him. He stated that he had overlooked the letter from
ESPEK dated 28th December 2007 (see page 14 of the Core Bundle
(“CB”) (“ESPEK’s Letter”) and he had never intended to conceal the
matter from the Applicant’s knowledge. He further claimed that he had no
intention to put off and / or delay and / or defer any work given to him
5
especially matters touching compensation or penalty imposed on the
Applicant.
[9] The Respondent testified that he had been working for the
Applicant for over 20 years and for the sake of the survival of the
Applicant, he, along with other employees worked hard during the
financial crisis as well as for the sake of the fertilizer business.
[10] On 25th February 2015, the Respondent was informed that a
domestic inquiry that was set up to inquire into the five charges proferred
against him had found him guilty of these charges. Based on this finding,
the Respondent was dismissed from the employment of the Applicant
with effect from the date of the letter.
[11] Aggrieved over the action, the Respondent filed a claim for
reinstatement with the Industrial Relations Department alleging that his
dismissal was without just cause or excuse. Pursuant to Section 20(3) of
the Industrial Relations Act 1967(“IRA”), the Honourable Minister
referred the matter to the Industrial Court (“IC”) for adjudication. On
7thApril 2015 the IC handed down Award No. 383/2016 dated 7th April
2015 which found that the Respondent was dismissed without just cause
and excuse and that the punishment of dismissal was too harsh in the
circumstances of the case. As reinstatement was not an appropriate
remedy in the circumstances, the IC made an order for the Respondent
to be paid compensation in the sum of RM133, 987.60 (RM6,699.38 x 20
years), in lieu of reinstatement. He was also awarded back wages in the
sum of RM80,392.56 (RM6,699.38 x 12).
6
[12] Aggrieved by the said Award, the Applicant moved the High Court
by way of the JR Application to quash the Award of the IC. On 28th April
2016, the High Court allowed the Applicant’s JR Application, to quash
Award No. 383/2015 with costs of RM3,000.00. A further order was made
by the learned Judge for the monies paid to the Respondent to be
refunded to the Applicant.
AT THE INDUSTRIAL COURT
[13] The salient facts before the IC Court were as follows:
(a) The action against the Respondent was premised on ESPEK’s
Letter. Vide ESPEK’s Letter addressed to “Pengurus Besar
Kumpulan” of the Applicant, Estet Pekebun Kecil Sdn Berhad
(“ESPEK”) made a claim via Debit Note DN03/12/2007-
ESTET from the Applicant in the sum of RM1,174.776.57 as
penalty for supplying fertilizer not in accordance with the
specification for year 2006.
(b) The Applicant contended, due to the Respondent’s failure to
act upon the said letter i.e. to appeal against the imposition of
penalty in the sum RM1,174,776.57, the Applicant suffered
loss in the sum of RM1,174,776.57.
(c) The IC was of the view that the Respondent was negligent in
not taking action on the said letter and / or in not bringing the
7
said matter to the attention of the Applicant and / or in not
appealing to ESPEK for the penalty imposed on the Applicant
to be reduced.
(d) The IC was of the view, based in the circumstances of the case,
the penalty imposed was excessive. The IC further stated that
the Applicant had framed five charges based on one act of
failing and / or neglecting to act upon the letter. In short there
were multiple charges premised only on one single alleged
misconduct (see paragraph 17 of the Award (at page 8 of
CB)).
(e) The Applicant had framed five charges in order to make the
disciplinary proceedings against the Respondent appear to be
serious and/ or grave despite the fact that the alleged
misconduct was based on the alleged act of the Respondent
in not taking action on ESPEK’s Letter.
(f) With respect to the 5th Charge where the issues of conflict of
interest and untrustworthiness were raised against the
Respondent, the IC found that despite the issues having been
raised, no facts and / or evidence in support of those
allegations were proved before the IC.
(g) Based on equity and good conscience and within the spirit of
IRA, in the circumstances before the IC, the IC was of the view
that the five charges framed by the Applicant based only on
8
one single act discussed above was merely to make it appear
and or to give the impression to the IC, the Respondent was
facing many charges of serious misconducts. This was
intentionally done in order to influence the IC to impose heavier
penalty on the Respondent.
(h) The IC was not satisfied that the Applicant had proved that it
was the Respondent who was responsible to have caused the
Applicant to lose RM1,174,776.57. From the facts adduced,
the Respondent was not accused of causing the Applicant to
suffer the penalty for failure to supply fertiliser in accordance
with the specification but he was only responsible for not acting
upon ESPEK’s Letter.
(i) The facts before the IC disclosed that the penalty sum was only
RM74,776.57. There was no evidence adduced by the
Applicant that the amount of penalty paid was
RM1,174.776.57.
(j) Premised on the above reasons, the IC was of the view that
the penalty in the form of dismissal was too harsh and ought
not to be imposed on the Respondent. Hence, the IC viewed
the punishment imposed was disproportionate to the
misconduct he was charged with.
(k) As a reinstatement was not appropriate, in the circumstances
of the case, the Respondent ought to be paid compensation in
9
lieu of reinstatement. Back wages too was awarded to the
Respondent as he was dismissed without just cause or excuse.
AT THE HIGH COURT
[14] The findings of the High Court were as follows:
(a) The learned Chairman of the IC erred when he decided that
there was no evidence that the Applicant had paid
RM1,174.776.57 to ESPEK as penalty. If the learned Chairman
disbelieved the Applicant’s witnesses pertaining to the
payment of the sum of RM1,174.776.57 million, the learned
Chairman ought to have held that the witnesses were not
credible. (Note: The learned Judge made a finding of fact that
there was in fact payment made based on the oral evidence of
the witnesses).
(b) The IC ought to have considered the reliability and credibility
of the evidence given by the witnesses. Unfortunately, this was
not done. The IC had made a finding that the loss of
RM1,174,776.57 million was not proved merely because there
was no evidence tendered. Relying on the case of Norizan
Bakar v Panzana Enterprise Sdn Bhd [2013] 9 CLJ 409, the
Learned Judge ruled that the IC had taken into consideration
irrelevant matter. (Note: The Learned Judge interfered with the
finding of the IC)
10
(c) The learned Judge further made a finding that the decision of
the IC that the misconduct committed by the Respondent did
not merit a dismissal but something lesser, was unreasonable.
(d) The Respondent was holding an important post which must
come with responsibility. His failure to act upon the said letter
was a serious failure especially when the Applicant had
incurred substantial loss.
(e) The Respondent, with his experience and knowledge of the
job, ought to have understood the consequences of his action
and ought to have taken the necessary action.
(f) The Applicant no longer had confidence in him due to his lack
of action. It mattered not whether the Applicant suffered any
loss due to the Respondent’s action. The learned Judge ruled
that as long as there is potential loss to be suffered by the
Respondent at the time the said letter was issued, that sufficed.
(g) In view of the aforesaid, the learned Judge was of the opinion
that decision of the IC was so unreasonable that no reasonable
tribunal similarly circumstanced could have arrived at such
decision.
11
OUR DECISION
The law
[15] We were mindful of the limited role of the appellate court in relation
to findings of facts made by the court of first instance.
[16] In the course of that, we had sought guidance from the very often
quoted case of Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin [2003]
2 MLJ 97 where the Court of Appeal held as follows:
“an appellate court will not, generally speaking, intervene unless the
trial court is shown to be plainly wrong in arriving at its decision.
But appellate interference will take place in cases where there has
been no or insufficient judicial appreciation of the evidence.”
[17] Reference is also made to the decision of the Federal Court in Gan
Yook Chin v Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309 where
the Federal Court held that the test of “insufficient judicial appreciation of
evidence” adopted by the Court of Appeal was in relation to the process
of determining whether or not the trial court had arrived at its decision or
findings correctly on the basis of the relevant law and the established
evidence.
[18] We were also mindful of our role in dealing with the appeal at hand
which originated by way of a judicial review application. The issue on the
proper approach to deal with the appeal was ventilated by both the
12
respective parties. We do not propose to deal with the law pertaining to
the scope of judicial review at great length as the law is trite. We were
guided by a plethora of cases which ruled that judicial review is not an
appeal from the decision but a review of the manner in which the decision
was made and that the High Court in hearing the judicial review is not
entitled to consider whether the decision itself, on the merits of the facts,
was reasonable and fair.
[19] Notwithstanding the above, we were also aware that the law on
judicial review had developed so as to give the power to the court hearing
a judicial review matter to scrutinize such decision not only for process,
but also for substance to determine the reasonableness of the decision.
Therefore, the conventional concept that judicial review is concerned only
with the review in the manner a decision is made is no longer the correct
approach to be adopted by the Court in dealing with judicial review cases.
(see R.Ramachandran v. The Industrial Court of Malaysia & Anor
[1997] 1 MLJ 145 ; Titular Roman Catholic Archbishop of Kuala
Lumpur v Menteri Dalam Negeri & Ors [2014] 8 CLJ 629; Datuk
Justine Jinggut v Pendaftar Pertubuhan [2012] 3 MLJ 212 ; Ranjit
Kaur S. Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629)
Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn
Bhd & Anor [2017] 2 CLJ 1).
[20] We were also guided by cases such as Wong Yuen Hock v
Syarikat Hong Leong Assurance Sdn Bhd [1995] 2 MLJ 753 ; [1995]
3 CLJ 344 FC (“Hong Leong”) ; Milan Auto Sdn Bhd v Wong She
Yen [1995] 4 CLJ 449 ; [1995] 3 MLJ 537 (“Milan Auto”) which provide
13
the guidelines to the Industrial Courts in dealing with dismissal cases
involving private sector employees. These two cases stated that the
Industrial Courts have to, firstly determine whether the misconduct
complained of by the employer has been established, and secondly
whether the misconduct which was established constituted just cause or
excuse for the dismissal. The Industrial Court, having decided that the
misconduct had been proven, is vested with the power to consider if such
a misconduct which had been proved merits the punishment of dismissal.
[21] We have also considered the principles laid down in Hong
Leong; William Jacks & Co. (M) Sdn Bhd v S. Balasingam [1997] 3
CLJ 235 (“William Jacks”) which ruled that generally the High Court is
not obliged to interfere with the findings of the IC unless such findings are
so unreasonable that no reasonable man could reasonably arrived at
such findings. This principle is in line with the spirit and intent of the IRA
that the IC must act according to equity and good conscience. Further the
court in Vasudevan Vazhappuli Raman v T. Damodaran P.V Raman &
Anor [1981] CLJ (REP) 101 ruled that the appellate court must not
reverse the judge’s exercise of discretion “on a mere “measuring cast” or
on a bare balance as the mere idea of discretion involves room for choice,
and for difference in opinion”. The court too “cannot make use of certiorari
proceedings as a cloak to entertain, what in truth is, an appeal against
findings of fact.” (see William Jacks).
[22] Upon perusal of the appeal records, the written submissions of the
learned Counsels as well having heard the oral arguments of both parties
and based on the facts as presented above, the question that we need
14
to ask is whether the IC could decide if the dismissal of the Respondent
was without just cause or excuse by using the doctrine of proportionality
of punishment and also decide whether the punishment of dismissal was
too harsh in the circumstances when ascertaining the Award under
section 20 (3) of the IRA.
[23] We need not go further as this very question had been answered in
affirmative by the Federal Court in Norizan Bakar v Panzana Enterprise
Sdn Bhd [2013] 9 CLJ 409 (FC) (“Norizan”). The Federal Court in
Norizan held as follows:
“[36] Thus, in reference to the questions posed to us, we are of the view that the
Industrial Court has the jurisdiction to decide that the dismissal of the appellant was
without just cause or excuse by using the doctrine of proportionality of punishment
and also decide whether the punishment of dismissal was too harsh in the
circumstances when ascertaining the award under s. 20(3) of the IRA. We are further
of the view that the Industrial Court in exercising the aforesaid functions can rely on
its powers under s, 30 (5) of the IRA based on the principle of equity, good conscience
and substantial merit of the case.
[37] Clearly, the reference by the Federal Court in Milan Auto’s decision to the
“two fold” test, especially the second fold where the Industrial Court has to decide
whether the proven misconduct constitutes just cause and excuse for the dismissal is
clear reference to the duty of the Industrial Court to apply the doctrine of
proportionality of punishment. This is consistent to what is required of the Industrial
Court under s. 30 (6) in making an award which provides:
(6) In making its award, the Court shall not be restricted to the specific
relief claimed by the parties or to the demands made by the parties in
15
the course of the trade dispute or in the matter of the reference to it
under section 20 (3) but may include in the award any matter or thing
which it thinks necessary or expedient for the purpose of settling the
trade dispute or the reference to it under section 20 (3).”
[24] The Federal Court in Norizan acknowledged that within the
framework of the IRA, there is already an inbuilt mechanism under Item
5 of the Second Schedule for the Industrial Court to consider the doctrine
of proportionality of punishment.
[25] Norizan is the authority which permits the Industrial Court to decide
whether the misconduct proved warrants the punishment of dismissal.
[26] Our next task is to examine the Award of the IC and determine,
whether based on the facts as illustrated above, the decision of the IC
can be quashed for want of “proportionality”.
[27] The facts from the proceedings before the IC were as follows:
(a) Although the Respondent was charged with five charges, the
undisputed fact is, all these five charges stemmed from the
single act in not taking action and / or in not responding to
ESPEK’s Letter.
(b) The IC was of the view that this was not appropriate and
against the doctrine of equity and good conscience for the
Applicant to magnify the alleged misconduct so as to influence
16
the IC that the Respondent was charged with many charges
consisting of serious misconducts to justify imposition of more
severe punishment on the Respondent.
(c) The Applicant had included element of conflict of interest and
untrustworthiness in the 5th charge, despite no evidence and /
or facts being adduced to support these allegations.
(d) The IC which conducted the viva voce evidence was satisfied
that the Applicant had failed to tender documentary evidence
to prove the Applicant had in fact paid the sum of
RM1,174,776.57 to ESPEK as claimed. My comments: If it is
true as claimed, the Applicant could have easily produced
documentary evidence in their possession to prove payments
had been made. Hence, there was no reason for the IC to
consider the credibility of the witnesses as suggested by the
learned Judge, when the facts showed the Applicant did not
have any documentary evidence to prove the same. The issue
is not credibility of the witness but non-production of
documents to prove payment. Hence the learned Judge erred
in disturbing the finding of the IC which had the benefit of a viva
voce evidence.
(e) The alleged misconduct was not based on the fact, the
Respondent was responsible for the penalty imposed by
ESPEK on the Applicant for supplying the fertilisers not in
17
accordance with the specification but only for his failure to take
action on ESPEK’s Letter.
(f) The penalty imposed on ESPEK was RM74,776.57. The
Applicant had failed to rebut, that payment of penalty was not
made by the Applicant.
(g) The Respondent had served in the Applicant for about twenty
years from 1st November 1990 to 25th February 2010. He had
contributed his services diligently. He was awarded the
“Promising Young Manager Award 1993” and “Excellent
Service Award” in 1993.
(h) The Applicant had failed to rebut the Respondent’s evidence
that the penalty imposed by ESPEK was not paid by the
Applicant.
[28] With the above facts placed before us, our next task is to ascertain
if the dismissal of the Respondent was without just cause or excuse by
using the doctrine of proportionality of punishment. We also have to
decide if the punishment of dismissal was too harsh in the circumstances
when ascertaining the award under section 20 (3) of the IRA.
[29] We are of the view, based on the facts as illustrated above and
guided by the authorities we have discussed herein, the decision of the
IC could not be termed as so unreasonable that no reasonable tribunal
18
could have arrived at such decision. In Hong Leong, the Federal Court
stated as follows:
“In exercising judicial review, the High Court was obliged not to interfere with the
findings of the Industrial Court unless they were found to be unreasonable, in the
sense that no reasonable man could reasonably come to the conclusion. In this case
it was perfectly justified for the Industrial to take into consideration Wong’s
misconduct as contributory factor towards the assessment of compensation. It was
not only consistent with S. 30 (5) of the Act, which requires the Industrial Court to
act according to equity and good conscience, but it would also discourage unfair
trade practice by motor insurance.”
[30] Even assuming, the High Court was of the view, based on the facts
before it, the High Court would have come to a different conclusion as
indicated in the case of Vasudevan, the High Court must not reverse the
said decision “on a mere “measuring cast” or on a bare balance as the
idea of discretion involves room for choice, and for different of opinion.”
[31] The law is trite, the High Court cannot interfere with the said
decision unless if it could be shown that the IC:
(a) Had applied the wrong principle;
(b) Had taken into consideration irrelevant matters or had not
taken into consideration relevant matters; and
(c) Handed down an award which is unfair.
19
[32] On the facts of this case, the decision of the Applicant to dismiss
the Respondent was disproportionate to the misconduct the Respondent
was charged with. It was too harsh and excessive. In view of this the IC
was justified in substituting it with its own Award vide Award 383/2015
dated 7th April 2015. Guided by the authorities discussed above, it is
within the jurisdiction of the IC to do so.
[33] Upon a close scrutiny of the facts before us, we found that the
decision of the IC did not suffer from any of the infirmities mentioned
above. Therefore, we found no reason for the High Court to interfere with
the findings of the IC.
CONCLUSION
[34] Having examined the appeal records and perused the written
submission and having heard the oral arguments, we were constrained
to hold that the learned Judge failed to judicially appreciate the evidence
and / or the law presented before him so as to render his decision plainly
wrong and upon curial scrutiny, it merits our appellate intervention.
[35] Based on the aforesaid, we unanimously allowed this appeal with
costs of RM5,000.00 to the Respondent subject to payment of allocator
fees. The decision of the High Court was set aside and the decision of
the Industrial Court was reinstated. The deposit refunded to the Applicant.
20
[36] We therefore ordered accordingly.
Dated: 27th October 2017
t.t.
(ASMABI BINTI MOHAMAD)
Judge
Court of Appeal, Malaysia
Parties:
1) Messrs A. Sivanesan & Co
Advocate & Solicitor For and on Behalf of the Appellant 2-5 (2nd Floor Block 5)
No. 30 Jalan Thambypillai Off Jalan Tun Sambanthan 50470 Kuala Lumpur
[Ref: AS/E/1292-10/S] … Mr A.Sivanesan Miss M. Kamini
2. Messrs Akmar & Co Advocate & Solicitors For and on Behalf of the Respondent B3A-3, 3rd Floor Block B, Dataran Palma Jalan Selaman 1 Off Jalan Ampang Selangor Darul Ehsan [Ref: No. 983(09) NARSCO/NA/DN/qyla] …Cik Hajjaral Aswani T.Ibrahim
Cik Dayang Nur Fathriah Munir